India Court Petitioned on Sodomy Law

NEW DELHI—India’s national government has told
justices siting on the Delhi High Court that criminal sodomy laws in the
Indian Penal Code cannot be repealed because “Indian society is intolerant
to the practice of homosexuality/lesbianism.” The government told the High
Court that legalizing gay sex would “open the floodgates of delinquent
behavior and be construed as providing unbridled license for the same.”

Quoting from the 42nd report of the Law Commission, the government told the
court “Indian society by and large disapproves of homosexuality and
disapproval was strong enough to justify it being treated as a criminal
offence even where the adults indulge in it in private.”

The government also attacked the Naz Foundation, which brought the suit,
saying that as it is an issue that only a small minority (gay men and
lesbians) it was not worth the High Court’s consideration. “No one except
those whose rights are directly affected by the law can raise the question of
its constutionality,” said the government.

The government’s blistering dismissal was issued in reply to a petition
challenging the constitutional validity of Section 377 of the Indian Penal
Code. According to the law,”whoever voluntarily has sex against the order of
nature with any man, woman or animal, shall be punished with imprisonment for
life, or with imprisonment of either description for a term which may extend
to ten years.”

Echoing arguments made in favor of sodomy laws in the United States, Delhi
claimed that Section 377 of IPC has been basically used to punish child sexual
abuse. It has rarely been used to punish sexual behavior between consenting
adults.

The Naz Foundation petition seeking the repeal of Section 377 was filed in
2001. Justices have since been waiting to hear the government’s stand and
noted with some irritation that wait had been in vain until now. The court
said the issue could not be shunted aside on the grounds of social morality.